East Penn Manufacturing Company

Plain-English summary

East Penn voluntarily removed a pregnant employee from lead exposure and initially continued both her base wages and expected overtime. After the Commission ruled in an earlier case that lead medical-removal benefits did not include overtime, East Penn stopped the overtime payments. The Commission reconsidered and overruled that earlier interpretation, holding that protected earnings include overtime, shift differentials, incentives, and other compensation the employee would have earned. It nevertheless vacated East Penn's citation because the company had reasonably relied on the Commission's controlling decision before appellate courts rejected it. The ruling therefore changed the rule for future compliance without penalizing the employer for following the prior interpretation.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.1025(k)(2)
• Outcome: Citation vacated with no penalty despite adoption of the Secretary's broader overtime interpretation.
• Key point: Medical-removal benefits preserve overtime and other earnings, but an employer was entitled to rely on the Commission's contrary controlling precedent while it remained in effect.

Full text (OSHRC public release)

Docket No. 87-0537

SECRETARY OF LABOR,

Complainant,

v.

EAST PENN MANUFACTURING COMPANY,

Respondent.

OSHRC DOCKET NO. 87-0537

DECISION

Before: BUCKLEY, Chairman, and AREY,
Commissioner.

BUCKLEY, Chairman:

This case requires us to reconsider the Commission's earlier interpretation of the medical
removal protection ("MRP") provision of the OSHA lead standard. The lead
standard requires employers to remove from continued exposure to high lead levels
employees who would be at particular risk of suffering lead-related diseases.[[1/]] The
MRP provision requires employers to "maintain the earnings, seniority, and other
employment rights and benefits" of removed employees.[[2/]] In Amax Lead Co. of
Missouri , 12 BNA OSHC 1878, 1986-87 CCH OSHD � 27,629 (No. 80-1793, 1986)(" Amax "),
rev'd sub nom . United Steelworkers of America v. Schuylkill Metals
Corp. , 828 F.2d 314 (5th Cir. 1987), the Commission held that "earnings" did
not include overtime and other amounts beyond the employee's regular hourly wage rate that
the employee might have earned if not removed. We now overrule Amax for the reasons
stated in this and the concurring opinion. We also conclude, however, that East Penn
Manufacturing Company ("East Penn") acted in reasonable reliance on the
Commission's Amax decision, and we therefore vacate the citation alleging that East
Penn violated the MRP standard.

The facts are not in dispute. [[3/]] On July 14,
1986, East Penn placed an employee on medical removal due to pregnancy.[[4/]] At first,
the company continued to pay the employee both her base wages and the overtime she would
have earned if she had remained in her previous position. However, in September, 1986,
after the Commission issued its decision in Amax , East Penn changed its policy and
discontinued the overtime payments, paying the employee only according to the base rate of
her former position. After being cited by the Secretary for violating the MRP standard,
East Penn moved to dismiss on the basis that the MRP payments it had made were all that
were required by Amax . Administrative Law Judge David G. Oringer, being bound to
follow the Commission's decision in Amax , granted the motion and vacated the
citation.

The Secretary argues, as she did in Amax ,
that the Commission should adopted her interpretation of the MRP standard. That
interpretation, set forth in an informational appendix to the standard, provides:

Earnings includes more than just your base wage; it includes overtime, shift
differentials, incentives, and other compensation you would have earned if you had not
been removed.

29 C.F.R. � 1910.1025, Appendix B, Sec. IX. In Amax , the Commission noted that the
term "earnings . . . is a general term broad enough to encompass the interpretations
offered by all of the parties." 12 BNA OSHC at 1882, 1986-87 CCH OSHD at p. 35,922.
The Commission therefore looked to the standard's legislative history to discern the
Secretary's intent when the standard was promulgated. Because the legislative history
consistently used the terms "rate of pay" and "rate retention" in
discussing MRP benefits, the Commission concluded that the MRP provision equated
"earnings" with "rate of pay" and therefore did not include items,
such as overtime, beyond the employee's base wage rate. 12 BNA OSHC at 1884, 1986-87 CCH
OSHD at p. 35,924. The Commission also noted that, during the notice-and-comment
rulemaking proceedings that culminated in the standard's adoption, the Secretary had not
given the public notice that she was considering a broader MRP provision than one
providing for "rate retention" and that the subject of overtime and other
premium payments engendered no comment or discussion during the rulemaking proceedings.
The lack of attention to the subject in the rulemaking proceedings buttressed the
Commission's conclusion that the Secretary had not intended for the MRP provision to
require overtime and other premium payments. The Commission further concluded that if the
Secretary had intended "earnings" to have a broader meaning than "rate of
pay," she had not given affected persons adequate notice and an opportunity to be
heard as required under notice-and-comment rulemaking procedures. 12 BNA OSHC at 1884-85,
1986-87 CCH OSHD at pp. 35,924-25.

The Fifth Circuit reversed the Commission's
decision. United Steelworkers of America v. Schuylkill Metals Corp. , 828 F.2d 314
(5th Cir. 1987). The court agreed with the Commission that the issue could not be resolved
on the basis of the plain meaning of "earnings." The court concluded that
"earnings" could have either the meaning given it by the Commission or that
advanced by the Secretary, but it adopted the Secretary's interpretation because its
precedents required it to defer to the Secretary's interpretation of an OSHA standard as
long as that interpretation is a reasonable one. Id . at 319. The court relied on
several factors in concluding that the Secretary's interpretation was reasonable: (1) the
preamble to the standard contained references to deficiencies inherent in limited forms of
MRP benefits under other statutes and standards; (2) the preamble indicated an intent that
employees removed from the standard sustain no economic loss; (3) failure to include
premium payments in MRP benefits would produce a disincentive for employees to cooperate
with the standard's medical surveillance provision; and (4) a broad interpretation of
"earnings" was necessary to achieve the standard's goal of placing the costs of
worker protection on industry rather than the workers themselves. Id . at 320-22.
The court further concluded that the Secretary had given adequate notice during the
rulemaking proceedings that she might adopt an MRP provision of such broad scope. Id .
at 323. The Ninth Circuit has also rejected the Commission's decision in Amax and
upheld the Secretary's interpretation of the standard, relying on much of the same
factors, but concluding that the Commission's interpretation was unreasonable and thus was
not entitled to judicial deference. Secretary of Labor v. Asarco, Inc. , 841 F.2d
1006 (9th Cir. 1988).

I have reconsidered our holding in Amax in
light of these court decisions. I note that the interpretive question presented is a close
one. Moreover, the Commission's Amax decision and the two court decisions readily
demonstrate that differing inferences can be drawn from the standard's legislative
history. Justice Brandeis once observed that "in most matters it is more important
that the applicable rule of law be settled than that it be settled right." Burnet
v. Coronodo Oil & Gas Co. , 285 U.S. 393, 406, 52 S.Ct. 443, 447 (1992) (Brandeis,
J., dissenting). I believe that, where the question is this close, the interests that
motivated Justice Brandeis's observation--predictability and uniformity in the law's
application--are best served by our acquiescence in the adverse court decisions.
Accordingly, I agree to overrule Amax and henceforth apply the MRP standard in
accordance with the two Courts' interpretation. Henceforth, employers including East Penn
must comply with that interpretation.

However, the alleged violation in this case
occurred after the Commission issued its decision in Amax and before that decision
was reversed by the Fifth Circuit. Moreover, East Penn specifically relied on the
Commission's Amax decision, changing its previous policy to conform to that
decision. East Penn argues that it would be fundamentally unfair to find it violated the
standard when it acted in reliance on Amax . We agree.

Employers are entitled to fair notice of the
conduct prohibited or required by OSHA standards. Gates & Fox Co. v. OSHRC , 790
F.2d 154, 156 (D.C. Cir. 1986); Kropp Forge Co. v. Secretary of Labor , 657 F.2d
119, 122-24 (7th Cir. 1981); Diebold, Inc. v. Marshall , 585 F.2d 1327, 1335-39 (6th
Cir. 1978); Bethlehem Steel Corp. v. OSHRC , 573 F.2d 157, 161-62 (3d Cir. 1978); Diamond
Roofing Co. v. OSHRC , 528 F.2d 645, 649 (5th Cir. 1976). As the Fifth Circuit
indicated, both the Secretary's and the Commission's interpretations find considerable
support in the language and legislative history of the standard. Where the language and
legislative history of the standard are ambiguous, as they are here, and the Commission
has issued an authoritative administrative interpretation of the standard, employers are
entitled to rely on that interpretation unless and until further events cast doubt on its
viability.

Accordingly, the judge's decision vacating the
citation is affirmed.

FOR THE COMMISSION

RAY H. DARLING, JR.

EXECUTIVE SECRETARY

DATED: April 27, 1989

AREY, Commissioner, concurring:

In my opinion, the Commission wrongly decided Amax ,[[1/]] and I therefore concur in
overruling that decision. The language of the medical removal protection standard,[[2/]]
read in light of the standard's purpose and its legislative history, requires employers to
assure that employees removed from lead exposure for medical reasons suffer no economic
loss. Therefore, East Penn's failure to pay its employee for overtime she would have
earned it she had not been medically removed from lead exposure was inconsistent with the
standard's requirement that employers "maintain the earnings . . . of an employee as
though the employee had not been removed from normal exposure to lead or otherwise
limited." I believe, however, that the Commission's Amax decision deprived
East Penn of fair notice of the standard's requirement for maintaining overtime payments,
and that it would be fundamentally unfair to conclude that the company violated the
standard when it reasonably relied on Amax . I therefore concur in the vacating of
the citation.

In this case and the three consolidated cases
involved in the Amax decision, there is one common fact of overriding importance:
employees who were transferred from areas of high lead exposure received smaller paychecks
than they would have received if they had not been transferred. While the employee East
Penn transferred continued to receive her base hourly wage rate for a normal 40-hour week,
she did not receive payments overtime she would otherwise have earned.

The question under the standard is whether East
Penn maintained the "earnings" of the employee it transferred even though her
paycheck was smaller than before. Yet, as I see it, the mere statement of this question
suggests the correct answer. Giving the term "earnings" its most common and
ordinary meaning, I would conclude that the "earnings" of the employee had been
reduced --and therefore not "maintain(ed)"--if she had received a smaller
paycheck. And I would reach this conclusion regardless of whether the reduction in the
size of the paycheck represented a reduction in the employee's base rate of pay or a
withholding of those "premium payments" that would normally be made, such as
overtime compensation, shift differential payments, or vacation leave payments.

Of course, it is possible that the Secretary used
the term "earnings" as a "term of art" designed to preserve only the
employee's base rate of pay. However, I would not adopt such a strained interpretation of
the standard and its language unless the legislative history of the standard clearly
revealed that this was the Secretary's intent. Here, in my opinion, the legislative
history does not show such an intent but rather shows the contrary, i.e., that the
Secretary gave the term "earnings" its usual and customary meaning when he
drafted this standard.

A standard must be interpreted to give effect to
the Secretary's intent in drafting it insofar as that intent is consistent with the
standard's language. Phelps Dodge Corp. , 83 OSAHRC 29/A2, 11 BNA OSHC 1441, 1444,
1983-84 CCH OSHD � 26,552, pp. 33,920-21 (No. 80-3203, 1983), aff'd , 725 F.2d 1237
(9th Cir. 1984). Here, the preamble to the standard indicates the Secretary's intent that
"earnings" encompasses more than an employee's base wage rate when additional
payments are necessary to prevent economic loss to the employee:

[T]he employer must maintain the earnings, seniority, and other employment rights and
benefits of a worker as though the worker had not been removed . . . In most cases this
will simply mean that an employer must maintain the rate of pay of a worker transferred .
. . The standard, however, uses the all-encompassing phrase "earnings, seniority, and
other employment rights and benefits" to assure that a removed worker suffers
neither economic loss nor loss of employment opportunities due to the removal.

43 Fed. Reg. at 54466 (Nov. 14, 1978) (Emphasis added). An employee whose total pay
decreases as a result of medical removal suffers an economic loss. Thus, the Secretary
intended that, in a situation where an employee is normally paid amounts beyond the
employee's base rate, such amounts must be included in medical removal protection
benefits.

Interpreting the standard to protect employees
against economic loss is also necessary to accomplish the standard's objective. Medical
removal is a way of protecting employees who have excessive blood lead levels or who are
otherwise at special risk of suffering lead-related diseases.[[3/]] They are protected by
being removed from lead exposure until either their blood lead level returns to an
acceptable concentration or their medical condition improves to the point where additional
exposure will not present an unacceptable risk.[[4/]]

Since medical removal is triggered either by an
abnormally high blood-lead level or by other medical information, it can only protect
employees who have their blood tested or are otherwise medically evaluated. However, when
employee cooperation with medical surveillance creates the possibility of financial loss
due to transfer out of an existing job, employees may well withhold such cooperation,
sacrificing their physical health for their economic health.[[5/]] Medical removal
protection benefits were intended to eliminate such a "Hobson's choice." By
assuring employees that their "earnings" would be maintained, the Secretary
eliminated the need for employees to choose between their paycheck and their health.

But the choice is only truly eliminated if a
medically removed employee continues to receive the same total amount of pay after removal
as before. A worker's family budget is based on the total amount of money that the
employee is accustomed to bringing home. Any decrease in that amount, even if the decrease
is relatively small, will strain the family budget and create the very disincentive to
cooperate with medical surveillance that the Secretary sought to avoid. Therefore, the
standard can only achieve its goal if interpreted to require the employer to pay a removed
employee the same total amount after removal as before. Accordingly, the standard
expressly states that the employee's earnings must be maintained "as though the
employee had not been removed . . . or otherwise limited."

East Penn argues that an interpretation of the
standard that includes payments beyond an employee's base wage rate fails to provide
employers fair notice of what "earnings" includes. According to East Penn, if
the standard requires payment of more than an employee's base wage rate, the only apparent
limitation on the forms of compensation contemplated by the standard would be "the
Secretary's imagination." This argument is without merit. There may be situations in
which an employee receives overtime or other incentive payments that vary week-by-week, so
that his or her paycheck also varies from week-to-week. However, in most situations, such
payments are based on some business purpose that is fairly predictable and repetitive, so
that the payments required under the MRP standard can be easily calculated. In this case,
for example, East Penn has not disputed the Secretary's calculation that the company
withheld from the removed employee $1,150.85 in overtime payments. While the amount of
overtime may not be calculable to the penny in all cases, the principle that employees not
suffer economic loss due to removal, coupled with an employee's earnings history, provides
adequate guidance to employers. See United Steelworkers of America v. Schuylkill
Metals Corp. , 828 F.2d 314, 323 (5th Cir. 1987) ("Schuylkill").

East Penn further argues that, if the standard is
interpreted to require MRP payments beyond an employee's "rate of pay," then the
Commission must conclude that the standard was invalidly promulgated. The company argues
that the Secretary did not give affected persons notice that such a broad MRP provision
was being contemplated and that this defect in the notice given violated the Act's notice
and comment rulemaking procedures. East Penn relies on the dissenting opinion of Judge
Jones in Schuylkill . However, the majority in Schuylkill and the Ninth
Circuit in McLaughlin v. Asarco, Inc. , 841 F.2d 1006 (9th Cir. 1988), rejected the
argument. Despite my own reservations about the adequacy of this issue by the two courts
that have already considered it. As Chairman Buckley notes in the lead opinion, the
objective of predictability in the law's application is best served by our adherence to
appellate court decisions. Both courts relied on the well-established principle that a
standard issued following notice-and-comment rulemaking may differ from the proposed
standard as long as the final rule is a "logical outgrowth" of the rulemaking
proceedings. Asarco , 841 F.2d at 1010; Schuylkill , 828 F.2d at 317-18. Here,
the courts, common conclusion that provision for overtime payments was a logical outgrowth
of the rulemaking proceedings seems reasonable because, as stated earlier, any economic
loss to an employee would reduce the incentive to cooperate with medical surveillance and
could limit the effectiveness of the entire lead standard.[[6/]]

Although I conclude that the arguments discussed
above should be rejected, I agree with East Penn's contention that it would be unfair to
find it in violation of the standard in the circumstances of this case. Before the
Commission issued its decision in Amax , East Penn paid its employee for overtime,
as required under the interpretation I have outlined. After the Commission issued Amax ,
the company relied on that decision and discontinued the overtime payments.

An employer who adheres to its own legal position
despite adverse adjudicatory decisions does so at its own peril, regardless of whether it
holds its position in good faith. RSR Corp. v. Brock , 764 F.2d 355, 363 (5th Cir.
1985). An employer should not, however, be required to act at its peril when it follows
the most authoritative decision on a point. See Diebold, Inc. v. Marshall ,
585 F.2d 1327, 1336-37 (6th Cir. 1978) (citation vacated because employer was deprived of
fair notice of standard's requirement by several factors, including rulings favorable to
employer's position by clear majority of Commission administrative law judges); Bethlehem
Steel Corp. , 82 OSAHRC 19/C8, 10 BNA OSHC 1470, 1473, 1982 CCH OSHD � 25,982 (No.
79-310, 1982)(same). The Commission issues its decisions with the hope and the intent that
employers will conform their conduct to the legal principles stated in its decisions. We
would be working at cross-purposes with our own goals if we were to punish employers like
East Penn that conformed their conduct to comply with a Commission decision.[[7/]] I
therefore agree that the Commission's decision in Amax deprived East Penn of fair
notice that the standard required it to pay its employee for overtime she would have
received if not removed and that the citation should be vacated on that basis.

SECRETARY OF LABOR,

Complainant,

v.

EAST PENN MANUFACTURING CO., INC.

Respondent.

OSHRC DOCKET No. 87- 0537

Appearances:

FOR THE COMPLAINANT:

Marshall H. Harris, Esquire, Regional Solicitor;

Covette Rooney, Esquire, of Counsel,

Office of the Solicitor

U. S. Department of Labor

FOR THE RESPONDENT:

Morgan, Lewis & Bockius, Esquires

Kenneth D. Kleinman, Esquire, of Counsel

Dennis J. Morikawa, Esquire, of Counsel

DECISION AND ORDER

ORINGER, JUDGE: On March 18, 1987, the Secretary
served a citation upon the respondent for an other than serious violation, alleging
therein that respondent, violated the standard set forth at 29 C.F.R. 1910.1025(k)(2)(i)
in that an employee removed from exposure from lead was not provided with medical removal
protection benefits as defined in 29 C.F.R. 1910.1025(k)(2)(ii) on or about January 9,
1987 and proposed therefore a $0 penalty.

A timely notice of contest was filed by respondent.

Thereafter on June 1, 1987, the Secretary filed
his complaint with the Review Commission alleging therein that respondent violated section
5(a)(2) of the Act and in particular, the standard set forth at 29 C.F.R. �
1910.1025(k)(2)(i). Complainant further alleged that an employee who was placed on a
voluntary medical removal program for lead on August 23, 1986 was not provided medical
protection benefits as defined in 29 C.F R. � 1910.1025(k)(2)(ii) on or about January 9,
1987.

The Secretary failed to describe either in its
citation or in its complaint in what manner the respondent had violated the standard set
forth at 29 C.F.R. � 1910.1025(k)(2)(ii). The Secretary, on page 3, in subparagraph (d)
of his complaint stated:

"respondent's employees were exposed or had access to this violation in that an
employee was not paid according to the same wages that she had been making while
performing the enveloping job".

Subsequent to the complaint being filed, in lieu of filing an answer, the respondent
otherwise pleaded by filing a motion to dismiss the complaint. The motion to dismiss read
as follows:

"The citation issued in this case alleges that East Penn failed to pay appropriate
medical removal protection benefits under the occupational exposure to lead standard, 29
C.F.R � 1910.1025(k)(2)(ii), because East Penn failed to include the overtime earnings of
the position from which the employee was removed in the medical removal protection
rate".

The respondent's motion was predicated upon the Commission decision in Secretary of Labor
against Amax Lead Company of Missouri 12 BNA OSHC 1878 (docket no. 80-1793) (1986)
which decision held that medical removal protection benefits need not include overtime
payments.

The problem with the original motion was that
nowhere in either the Secretary's citation or complaint was it revealed that the citation
was based upon the fact that the medical removal protection benefits paid to the employee
did not include overtime or incentive payments.

Normally this would have made the motion
premature in that an answer should have been filed. and interrogatories or requests for
admissions directed to the Secretary to show that its violation was based upon the failure
to pay overtime payments, however, the Secretary's response in opposition to
respondent's motion to dismiss the complaint removed any doubt as to what the violation
was based upon. Page one of the Secretary's memorandum in support of complainant's
response in opposition to respondent's motion to dismiss the complaint, states in
pertinent part, as follows:

"...The factual basis for the issuance of this citation was that respondent failed to
pay to an employee, subject to medical renewal (sic) protection ("MRP")
benefits, the overtime payments the employee would have reviewed (sic) but for the
removal. Respondent does not dispute that it failed to pay this employee overtime payments
that he (sic) would have earned but for the removal. Respondent defends its position on
the grounds that, the Review Commission in Secretary of Labor v. Amex Lead Company Of
Missouri [[1/]] held that such payments are not included within the definition of
"earnings" maintained for MRP employees." (footnote omitted)

The remainder of the memorandum of law argued
that the Commission decision was incorrect, urged that the complaint should not be
dismissed and that respondent should be ordered to answer the complaint. The Secretary
described the Commission's approach as characterized by "tortuous construction of the
term 'earnings' and a misreading of the rule-making history".

Accordingly, while the Secretary was avoiding in
its citation and complaint the impact of the decision in Amax and, as a result, the motion
to dismiss by respondent was in fact premature, his admission in his memorandum of law
that the citation was based upon the failure to pay overtime benefits cures the defect and
makes this question ripe for decisional purposes at this time.

Both parties, in their briefs, cite the Review
Commission decision in Amax Lead Company of Missouri , the respondent relying on it
in its motion to dismiss and the Secretary taking issue with it in its affidavit in
opposition to the motion to dismiss.

Wherefore, the sole salient issue in
determination of this case is whether or not employees who are receiving medical removal
benefits as a result of excessive lead levels determined from blood tests would be
entitled to overtime pay. This specific issue was addressed in Amax Lead Company of
Missouri , Schuylkill Metals Corp. , and St. Joseph Resources Co. , OSHRC
docket numbers 80-1793, 81-0856 and 81-2267, all found at 12 BNA OSHC 1878, decided in
June of 1986. In those decisions, the Commission clearly and unequivocally ruled that
employees are not entitled to overtime benefits as part of medical removal benefits.

It has been long settled Commission law that
administrative law judges must follow Commission rules and that they also must follow
precedents established by the Commission. Continental Steel Corporation 1 BNA OSHC
1726 (1974) Accordingly, the judge is constrained to follow the Commission precedent
annunciated in Amax in the instant cause.

Wherefore, in accordance with Commission
precedent, as above related, the citation is VACATED.

It is SO ORDERED.

DAVID G. ORINGER,

JUDGE, OSHRC

Dated: September 9, 1987

Boston, Massachusetts

FOOTNOTES:

[[1/]] The lead standard requires that an employee whose blood lead level exceeds a
specified concentration be removed from a work area where the airborne lead concentration
is more than a certain amount. Since the expiration of the initial phase-in period during
which higher concentrations were permitted, the standard has required that an employee
with a blood lead level at or above 50 �g/100g of whole blood be removed from work having
a daily eight hour time-weighted-average exposure to airborne lead at or above 30 �g/m�.
29 C.F.R. � 1910.1025(k)(1)(i). The standard also requires removal if a "final
medical determination" establishes that an employee has a "detected medical
condition which places the employee at increased risk of material impairment to health
from exposure to lead." 29 C.F.R. � 1910.1025(k)(1)(ii)(A).

[[2/]] Insofar as is relevant here, the MRP
provision states:

� 1910.1025 Lead

*        *
        *

(k) Medical Removal Protection

*        *
        *

(2) Medical removal protection benefits --

(i) Provision of medical removal protection benefits . The employer shall provide to
an employee up to eighteen (18) months of medical removal protection benefits on each
occasion that an employee is removed from exposure to lead or otherwise limited pursuant
to this section.

(ii) Definition of medical removal protection benefits . For the purposes of this
section, the requirement that an employer provide medical removal protection benefits
means that the employer shall maintain the earnings, seniority and other employment rights
and benefits of an employee as though the employee had not been removed from normal
exposure to lead or otherwise limited.

[[3/]] After the Secretary filed a complaint,
East Penn moved to dismiss the complaint. Attached to the motion was the affidavit of
Steven Burgert, East Penn's Director of Regulatory Compliance. The Secretary does not
dispute any facts stated in Mr. Burgert's affidavit and, indeed, bases her own arguments
on those facts. The facts stated in Mr. Burgert's affidavit are sufficient to resolve all
issues presented by the case.

[[4/]] Pregnancy is not a mandatory basis for
removal. See note 1 supra . However, the standard requires that MRP payments
be made when an employer voluntarily removes an employee from lead exposure "due to
the effects of lead exposure on the employee's medical condition." 29 C.F.R. �
1910.1025(k)(2)(vii).v   

[[1/]] Amax Lead Co. of Missouri , 12 BNA OSHC 1878, 1986-87 CCH OSHD � 27,629 (No.
80-1793, 1986). rev'd sub nom . United Steelworkers of America v.
Schuylkill Metals Corp. , 828 F.2d 314 (5th Cir. 1987).

[[2/]] See note 2 of the lead opinion.

[[3/]] See note 1 of the lead opinion.

[[4/]] 29 C.F.R. � 1910.1025(k)(1)(iii). In
extreme cases, a person's medical condition may make it unreasonably dangerous for the
person to be exposed to any amount of lead. If a "final medical determination is made
that the employee is incapable of ever safely returning to his or her former job
status," the employer may discontinue paying medical removal protection benefits. 29
C.F.R. � 1910.1025(k)(2)(vi)(C).

[[5/]] The Secretary's finding to this effect, 43
Fed. Reg. 54354, 54422 (Nov. 21, 1978), based on his review of the rulemaking record, is
entitled to deference by the Commission in interpreting and applying the standard. See
United Steelworkers of America v. Schuylkill Metals Corp. , 825 F.2d 314, 322-23
(5th Cir. 1987) (rejection of argument that payments are not necessary to induce employee
cooperation).

[[6/]] The Commission, in Amax , placed
great emphasis on the Secretary's use of the terms "rate of pay" and "rate
retention" in the rulemaking proceedings to conclude that the Secretary intended the
standard to only require the employer to maintain the employee's hourly wage rate.
However, language used in the proposed rule or in supplementary notices issued for the
purpose of soliciting information that will help shape the final rule are at best
uncertain guides to the intent underlying the final rule. Indeed, since the purpose of a
notice of proposed rulemaking is to solicit a wide range of views as to the content of the
final standard, it is inappropriate to place too much emphasis on the words used such a
notice. Whatever the Secretary was thinking when soliciting comments on an MRP provision,
the words of the final standard, read in conjunction with the preamble and the standard's
purpose, make it clear that the Secretary intended the final standard to protect
employees against any economic loss.

[[7/]] I do not see any remedial purpose
that would be served by upholding this particular citation under the novel circumstances
of this case.